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SIU Director’s Report - Case # 18-OCI-067

Contents:

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Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information restrictions

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:
  • Confidential investigative techniques and procedures used by law enforcement agencies; and
  • Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 
Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • Subject Officer name(s);
  • Witness Officer name(s);
  • Civilian Witness name(s);
  • Location information; 
  • Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and 
  • Other identifiers which are likely to reveal personal information about individuals involved in the investigation.


Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

Mandate engaged

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the serious injury reportedly sustained by a 63-year-old male (the Complainant) during his arrest on October 25, 2017.

The Investigation

Notification of the SIU

At approximately 12:03 p.m. on March 6, 2018, the Niagara Regional Police Service (NRPS) notified the SIU of a custody injury to the Complainant.

The NRPS reported that on October 25, 2017, at approximately 12:20 p.m., WO #2 and other NRPS police officers went to the Howard Johnson Hotel in the City of Niagara Falls. The police had been asked by hotel management to attend and remove an unwanted guest (now known to be the Complainant). The Complainant refused to cooperate with police and was arrested for trespassing. A short struggle ensued between the Complainant and the SO, after which the Complainant was placed in handcuffs. The Complainant was then transported to the police station, issued a Part 3 Summons for trespassing, and was subsequently released from custody.

After his release, the Complainant spent some time on his own at a Salvation Army hostel in the City of St. Catharines. He then went to another (unknown) motel for two more days, at which point the Complainant was unable to care for himself so he called CW #1, who was still at the Howard Johnson Hotel. CW #1 then went to the Complainant’s motel to care for him. When she became concerned about an injury to the Complainant, they went to the hospital together on October 30, 2017. The Complainant was diagnosed with having suffered rib fractures and he remained in the care of the hospital for about two days, when he left and never returned for re-assessment.



The Team

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0

Complainant:

63-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Not interviewed
CW #2 Not interviewed, could not be located
CW #3 Not interviewed, could not be located

On every occasion that SIU investigators met with the Complainant, CW #1 was present but intoxicated and she was therefore not interviewed.

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed



Subject Officers

The SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.



Incident Narrative

At approximately 11:50 a.m. on October 25, 2017, a call was received by the NRPS requesting police assistance at a Howard Johnson Hotel in the City of Niagara Falls. The call originated from the on-duty manager, who indicated that he wished a man (the Complainant) and his associates removed from one of their rooms. As a result, WO #2 and the SO were dispatched to the hotel. Following an interaction with the Complainant, the police arrested him for trespassing and transported him to the police station. At the station, the Complainant was brought before the booking officer who asked him questions about his sobriety, his general health, and if he was taking any medications. The booking officer specifically asked the Complainant if he was injured as a result of his arrest and the Complainant responded that he was not. The following day, the Complainant was issued a Part 3 Summons for Trespassing and was released from custody.

After his release, the Complainant spent some time on his own at a Salvation Army hostel in St. Catharines, after which he went to another (unknown) motel for an additional two days. The Complainant subsequently contacted CW #1 to assist him, as he was unable to care for himself, and she came to his motel to care for him. They then attended hospital together on October 30, 2017.

The Complainant alleged that while he was at the Howard Johnson Hotel on October 25, 2017, he received his rib injuries at the hands of the police.

Nature of Injuries / Treatment

X-rays revealed that the Complainant had sustained segmental fractures of the right 7th to 11th ribs and fractures of the right 6th and 12th ribs. He remained in hospital for two days, after which he was released; he did not return to the hospital for any follow-up appointments.

Evidence

The Scene

The Complainant was arrested on October 25, 2017, in a room of the Howard Johnson Hotel in the City of Niagara Falls. As he did not report his injuries to police until March 6, 2018, the room had been used by other patrons and was no longer capable of providing any evidence relevant to this investigation.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

CCTV Video from Howard Johnson Hotel


The recording was made on October 25, 2017 beginning at 1200 hrs.

At 12:00:55 hrs, a marked police cruiser arrived in the parking lot of the Howard Johnson hotel, stopping in front of rooms 107 and 108;

At 12:01:16 hrs, the SO exited his police cruiser;

At 12:01:46 hrs, the SO entered one of the hotel rooms and five seconds later he exited the hotel room;

At 12:01:56 hrs, a second SUV police cruiser, driven by WO #2, arrived in the hotel parking lot;

At 12:02:10 hrs, the SO walked from the hotel room towards the hotel lobby;

At 12:04:55 hrs, the SO escorted the Complainant, CW #1, and CW #2 back to one of the hotel rooms;

At 12:05:23 hrs, the Complainant, CW #1, and CW #2 entered the hotel room;

At 12:05:38 hrs, the SO stood next to his police cruiser;

At 12:05:57 hrs, WO #2 walked up to the hotel room which the Complainant had entered;

At 12:06:11 hrs, WO #2 stood with CW #2 and CW #3 outside the Complainant’s hotel room;

At 12:13:50 hrs, the SO walked towards the hotel lobby;

At 12:14:40 hrs, the SO returned driving WO #2’s SUV police cruiser and stopped in front of the Complainant’s hotel room. A short time later the SO entered the Complainant’s hotel room;

At 12:16:03 hrs, CW #3 pushed WO #2 and he pushed her back, causing CW #3 to fall over a deck chair;

At 12:16:05 hrs, WO #2 chased after CW #2 in the hotel parking lot and at 12:16:10 hrs, WO #2 and CW #2 began to struggle;

At 12:16:11 hrs, the SO exited the Complainant’s hotel room and assisted WO #2, who was struggling with CW #2. Four seconds later, the SO and WO #2 took CW #2 to the ground;

At 12:20:36 hrs, CW #3 was arrested and placed into a police cruiser;

At 12:24:15 hrs, the Complainant was carried from his hotel room by the SO and two other police officers and placed into a police cruiser; and

At 12:59:33 hrs, the recording ended.

NRPS Booking and Cell Video


The recordings were made on October 25, 2017 beginning at 1326 hours and showed the following:

At 13:26:45 hrs, the SO arrived at the police station driving a Ford SUV police cruiser;

At 13:31:07 hrs, the Complainant exited the police cruiser and was escorted by the SO and two jail guards to the booking area. The Complainant’s hands were handcuffed behind him; he was dressed in shorts and a shirt and was barefoot. The Complainant showed no signs of being injured;

At 13:31:21 hrs, the Complainant was escorted into the booking area;

At 13:34:14 hrs, the Complainant was asked by the booking sergeant if he had been drinking and he replied that he had;

At 13:34:15 hrs, the Complainant was asked if he had taken any drugs and he replied, ‘No way Jose’;

At 13:34:29 hrs, the Complainant was asked if he had any injuries and he replied he had broken his back. The sergeant rephrased the question and asked if he had any injuries as a result of getting arrested that day and the Complainant replied, “No, you people were very kind to me”;

At 13:36:38 hrs, the Complainant was escorted over to a wall and searched. After the search was done, he was escorted to cell number 28 which he entered; and
At 13:38:48 hrs, the recording stopped.

Communications Recordings

Recordings of the request for police assistance received from the Howard Johnson Hotel management and police transmission communications recordings were obtained and reviewed.

The recording of the Complainant outlining his complaint to the NRPS was also obtained and reviewed.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the NRPS:

  • Computer Aided Dispatch (CAD) Detailed Call Summary;
  • Conducted Energy Weapon (CEW) Report;
  • General Occurrence Reports (x7)
  • NICE Inform Results Table Radio Transmissions;
  • Notes of WO #s 1 and 2;
  • Procedure: Persons in Custody;
  • Procedure: Use of Force;
  • Procedure: Powers of Arrest;
  • Recording from Master Logger including recording of initial call for request for police assistance and police transmissions recordings; 
  • Copy of call from the Complainant; and
  • Request for Recording from Communications Unit.


The SIU obtained and reviewed the following materials and documents from other sources:

  • Medical Records of the Complainant relating to this incident, obtained with his consent.

Relevant Legislation

Section 25(1), Criminal Code -- Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Section 2(1), Trespass to Property Act -- Trespass an offence

2 (1) Every person who is not acting under a right or authority conferred by law and who,
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or
(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $10,000.

Section 9 (1), Trespass to Property Act – Arrest without warrant on premises

9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.

Analysis and Director's Decision

On October 25, 2017, at 11:50:53 a.m., the NRPS communications centre received a call for police assistance at the Howard Johnson Hotel in the City of Niagara Falls. The caller, the hotel manager, indicated that the police had also been present the previous day for the same reason and he required assistance to remove an unwanted guest. As a result, the SO and WO #2 were dispatched to the hotel and the Complainant was arrested and transported to the station; he was released the following day. Over four months later, on March 3, 2018, the Complainant registered a complaint with the NRPS that he had sustained a serious injury at the hands of police during his arrest on October 25, 2017. As a result, the SIU was notified and an investigation was commenced.

The medical records of the Complainant reveal that he presented himself at the hospital on October 30, 2017, at 10:56 p.m., five days after his arrest. Following a CT scan of his chest, abdomen, and pelvic area, the Complainant was diagnosed with a “Small to moderate right pneumothorax. Segmental fractures of the right 7th to 11th ribs. Also fracture of the right 6th and 12th rib.”

According to the doctor’s notes, as well as the EMS record, the Complainant reported that, “… approx. 5 days ago pt (patient) was in an altercation with the police in which he was thrown down to the ground. Pt suffered immediate rib pain on his left side. Pt did not seek medical attention. Pt has been bed ridden for the past few days …”

I find it noteworthy that the Complainant complained of immediately experiencing pain to his ribs on his left side during his arrest, while the CT scan revealed only injuries to the right side ribs.

According to the Complainant, he recalled that police attended the Howard Johnson Hotel on October 25, 2017 at approximately 1:00 p.m. because he had purportedly been causing a disturbance. The Complainant indicated that he and his wife had been drinking Scotch on that date, and that he rated himself as a three, on a sobriety scale of one to ten, with one being sober and ten being falling down drunk.

The Complainant stated that he was not combative with police when they arrived and told him that he had to leave the hotel, but that he told them that he needed some time because he had his dog with him and he needed to make arrangements for other accommodation. The Complainant described the police officers as initially being patient with him. The Complainant professes to a lack of clarity on the details of what occurred after he began to gather up his belongings, with his only clear recollection being that he was told that he was under arrest and that, as he was about to leave the room, he turned to his left, tripped, and fell to the ground. He does not attribute this falling to the actions of any police officer. The Complainant’s next recollection is that he was on the floor, a police officer was standing to his right, and he was being told that he had resisted and tripped over his own two feet.

The Complainant opined that he could not have been that clumsy and speculated that perhaps he had provoked one of the police officers, but he had no recollection of ever being struck by any police officer present.

In a recording obtained from the NRPS, wherein the Complainant called in to the police station on March 3, 2018 at 5:29 p.m. and verbally made a complaint, he is heard to state that he is suing the police because he was, “… brutally beaten by the Niagara Regional Police. A cop on your force there and his name is Sirwat (phonetically spelled. Query whether he was possibly referencing WO #2?) … apparently I was resisting, which I was not, broke my fuckin’ knee, broke my fuckin’ four ribs plus, plus collapsed my lung …” The recording from the Complainant is sprinkled with colourful language, expletives, and derogatory terms for various police officers. I note that the SO is not mentioned as being responsible for this alleged beating.

It is notable that in the video wherein the Complainant is seen exiting the police cruiser and being escorted into the booking area, he walks of his own accord and does not appear to display any signs of pain or injury. Furthermore, I note that the booking video at the police station has the Complainant responding to the booking sergeant’s question as to whether or not he received any injuries during his arrest on that date, by stating, “No. You people were very kind to me.”

In the absence of any clear recollection by the Complainant as to the cause of his injuries, unfortunately, I lack the reasonable grounds upon which to satisfy myself that the injuries were caused by police. Even were there some evidence that the injuries were caused by police, I have no evidence as to which of the two police officers may have inflicted the injuries, with nothing more than the Complainant’s speculation in hindsight to base any grounds upon, as well as his inconsistent statements wherein he first told the booking sergeant that he had been treated well by police and had sustained no injuries, while in his medical records he attributed his injuries to having been thrown onto the ground, and finally, in his call to police, wherein he alleges he was “brutally beaten” by Cst ‘Sirwat’. It is made abundantly clear, however, in the Complainant’s statement to the SIU, that he really has no recollection of either the details of his arrest, or how or when he sustained his injuries.

Both the SO and WO #2, in their interviews with SIU investigators, indicated that the Complainant fell to the floor of the hotel room on his own, and was not thrown down by either police officer, with the SO recalling that when the Complainant tried to close the hotel room door on the SO, the SO knocked the Complainant’s hand off of the door knob, following which the Complainant stumbled backwards into the room and then tripped over his own feet and fell backwards, landing on his right side.

WO #2, who was standing just outside of the room at the time, looking in, observed the Complainant push the SO, after which the Complainant threw himself onto the ground of his own accord, in what WO #2 inferred was an action meant to prevent his arrest. WO #2 also observed the Complainant to fall a second time, when the SO was trying to grab the Complainant’s arms for handcuffing, while the Complainant was grabbing onto furniture to prevent his removal, at which point WO #2 recalled seeing the Complainant fall over the foot of the bed and onto the floor.

While the evidence of the Complainant alone does not satisfy me that I have reasonable grounds to believe that any police officer ever resorted to any force during the arrest of the Complainant, I note that the SO openly acknowledged, in his interview, that during the arrest of the Complainant, after the Complainant had fallen to the floor and was struggling and resisting giving up his hands for handcuffing, the SO delivered one knee strike to the Complainant’s left upper torso, above his waist, in order to get the Complainant to cooperate, which he then did, producing both hands for handcuffing.

I note that this evidence is consistent with the information provided by the Complainant to the paramedics, and thereafter to medical staff at the hospital, that he immediately felt pain to his left rib area during his arrest, which supports the evidence of the SO that he delivered a knee strike to the left side, which knee strike is inconsistent with the injuries to the Complainant’s right side ribs.

I further note that the evidence of all three police officers who attended the Howard Johnson Hotel is that the Complainant was intoxicated, despite his self-assessment that his state of sobriety was at the lower end of the range, with the SO placing him at an eight and a half out of ten and WO #1 placing him at a seven, while describing the Complainant as having blood shot eyes, a strong odour of alcohol on his breath, and being verbally abusive and belligerent towards WO #1 and the SO.

Other than the one knee strike to the Complainant’s left side torso by the SO, all three officers stated that they did not resort to any use of force options against the Complainant, nor were any other strikes inflicted.

While the evidence of the Complainant did not reveal any misconduct by any police officer present during his arrest, based upon the evidence of the SO, that he delivered a single knee strike to the Complainant’s left side when he was resisting being handcuffed, the question to be determined is whether this single strike was justified on these facts, or if it amounted to an excessive use of force providing me with reasonable grounds for the laying of criminal charges.

I hasten to add that if the Complainant was injured when he fell to the floor and struck his right side, which he and both the SO and WO #2 have attributed to the Complainant falling of his own accord, I accept that no police officer was responsible for this fall or the subsequent injuries, if they were in fact sustained at that time, and that the fall does not provide me with reasonable grounds for the laying of criminal charges.

While the Complainant has no recollection of what occurred thereafter, there is nothing to contradict the version of events as provided by the SO, and I accept that the reliable evidence establishes that the only force used against the Complainant was the single knee strike to his left torso. I have also taken into account that the Complainant alleged in his telephone complaint that it was, presumably, WO #2 (Cst Sirwat?) who ‘brutally beat’ him, while the CCTV from the hotel definitely establishes that at no time did WO #2 enter the room to arrest the Complainant, as he appeared to be fully engaged with CW #2, CW #1 and CW #3 in the parking lot, while the SO was inside the room with the Complainant.

On the basis of all of the evidence available on this record, I find that the Complainant unfortunately has little, if any, memory of how or when he sustained his injuries, and that while it is possible that he was injured during his arrest, when he fell to the floor, it is equally possible that he was injured in the intervening five days after his arrest and before he attended the hospital, for which interval there is no evidence as to what, if anything, occurred.

Pursuant to s. 25(1) of the Criminal Code, a police officer, if he acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. As such, in order for the subject officer to qualify for protection from prosecution pursuant to s. 25, it must be established that he was in the execution of a lawful duty, that he was acting on reasonable grounds, and that he used no more force than was necessary.

With respect to the first requirement, it is clear that the SO and WO #2 were acting in the execution of a lawful duty, when, pursuant to the request of the hotel manager, they acted to evict the Complainant from the hotel pursuant to the Trespass to Property Act (TPA). Furthermore, once the Complainant physically resisted the officer’s efforts to remove him from the hotel, the SO was acting in the execution of his duty when he arrested the Complainant both for breaching the TPA and thereafter for resisting his arrest.

On the question of whether or not the single knee strike resorted to by the SO amounted to an excessive use of force in these circumstances, I find on these facts that it does not. Having viewed the video of the hotel, I find that the incident was chaotic, that all parties, including the Complainant, appeared to have been heavily intoxicated, and the entire interaction with police appears to have degenerated into a melee, with various parties resisting and assaulting the police officers.

I further accept that there was some urgency to contain the Complainant as quickly as possible, as he was actively resisting, while the SO’s colleague, WO #2, was coming under attack in the parking lot, requiring the SO to finish with the Complainant and go out to assist WO #2. While the amount of force resorted to was a single knee strike, and there is no evidence that it resulted in any injury to the Complainant, I cannot find that this single action was anything other than justified and I find that it was both measured and proportionate to the resistance being put up by the Complainant. Furthermore, I have taken note that after the single strike, which resulted in the Complainant giving up his hands and being cuffed, no further force was resorted to.

In coming to the conclusion that this single use of force by the SO was justified pursuant to s. 25 (1) of the Criminal Code, therefore exempting the SO from prosecution, I have also taken note of the decision of Supreme Court of Canada in R. v. Nasogaluak [2010] 1 S.C.R. 206, as follows: 
 
Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety.

In conclusion, on the evidence before me, I am unable to ascertain how, when, or at whose hands, if any, the Complainant sustained his injuries and I find that the single knee strike resorted to by the SO to restrain and handcuff a resistant and intoxicated male was justified in the circumstances and does not leave me with reasonable grounds to believe that the officer acted outside of the limits of the criminal law. As such, as I lack the necessary grounds for the laying of charges, none shall issue.



Date: February 1, 2019



Tony Loparco
Director
Special Investigations Unit